36 Neb. 45 | Neb. | 1893
This was an action of replevin in the district court of Hall county, the pleading being in the usual form. Trial and judgment for the plaintiff below, whereupon the case was removed to this court upon petition in error. The material facts are as follows: For about a year previous to the 18th day of January, 1890, John W. A. Hoppel had been engaged in business as a general merchant in the town of Wood River. On the day above named he was, it is admitted, in failing circumstances, his assets, aside from a homestead of small value, consisting of a stock of merchandise worth, according to the estimate of witness, from $1,400 to $2,000, with liabilities amounting to $2,864. Among his creditors were certain parties residing at Wood River, mostly for money advanced, to-wit: J. Bowen, $600; F. M. Penney, $100; The First National Bank of Wood River, $300. Of the last named amount, $100 was on his unsecured note and $200 secured by the note of Mr. Bowen. The morning of the day named Bowen, after making an ineffectual effort to have Hoppel pay or secure the $600 due him, called upon the defendant in error, who was cashier of the bank above named, and of which he, Bowen, was a stockholder, and made some inquiry about the standing and credit of Hoppel. The question of the value and cost of the goods was also discussed. Hoppel followed Bowen to the bank, where he executed to Chamberlain an instrument in the form of a bill of sale, by which he conveyed to the latter his entire stock of goods for the expressed consideration of $1,600. Chamberlain, at the
A question to which prominence was given at the trial below, and also in this court, is whether the transaction is to be treated as a sale of the stock of goods by Hoppel, or whether the so-called bill of sale was intended merely as a security for the $1-600 advanced by Chamberlain. It is claimed by the latter that he purchased the goods for the consideration named, while the testimony of the former is relied upon to prove that the transaction is but a mortgage. This contention is supported by the fact that Hoppel, on : the delivery of the bill of sale, executed to Chamberlain a note for $1,600. The latter, however, explains the execution of the note last mentioned thus: In the purchase of the goods in question he was acting in the interest of the bank and the money paid was a part of its funds, and that he insisted upon the note in order to balance his books until the goods could be disposed of in order to avoid having them appear as a part of the resources of the bank. As the law applicable to this branch of the case plaintiff requested the following instruction: “You are also instructed that if you find from the evidence that the bill of sale was made to enable Chamberlain to dispose of the goods and out of the proceeds pay Hoppel’s indebtedness to the bank, to Bowen and Peycke Bros., and that after such debts were paid any part of the goods or their value was to be returned to the said Hoppel, then such sale was void, and you should find ; for the defendant without regard to what the intentions of i the parties or either of them might have been.”
2. The chief reliance of plaintiff in error is apparently upon the proposition that the transfer of the stock of goods to Chamberlain, by Hoppel, was in fraud of the other creditors of the latter. He claims broadly that the officers of the bank, including the defendant in error, being aware
Q. Can you tell the first thing you said to Chamberlain?
A. "Well, I told him I was in bad circumstances, * * and wanted to fix matters up.
A. Yes, and that I owed Bowen $600.
Q. Tell him that you owed any other parties?
A. I told him I owed — well he knew I owed the bank —that is all.
Q. Tell him about anybody else?
A. No, sir.
Q. Didn’t tell him a word about them; he didn’t ask you how much you owed or to whom ?
A. No, sir.
Q. Did he go on and make out a bill of sale without anything further being said?
A. No, sir; he asked me how — what the trouble was of course.
Q. What did you tell him?
A. I told him I had been sick * * and that I owed Mr. Bowen and that he wanted his money and I wanted to get some money.
Q. Did you ask him to loan you the money? Did you ask him the best way to fix it up?
A. I don’t know as I did.
Q. Who made the first proposition about buying the stock of goods ?
A. Just then I gave him a bill of sale of the goods.
Q. Who made the first proposition about buying the goods, you or he?
A. I suppose I did.
Q. What was the first terms you offered? What was your first proposition in regard to the sale of the stock?
A. I told him I owed Mr. Bowen $600, and he had some against me, and I was so I did not know whether I could work or not, and the stock would be worth $1,600.
The value of the stock, according to the witness for the defendant in error, was from $1,400 to $1,600. At the time of the transfer, it will be remembered, Hoppel was indebted to the bank $400, including the Penney note, which
Affirmed.